Hi, this is Margaret from Silk. Just wanted to chime in quickly on the post. You are correct that this was a user submitted video, as part of a contest we ran in 2011 with the help of ZOOPPA. It was never used as advertising by Silk (television or otherwise).

This video was ripped off of my friend Kenny Wu's vimeo page. He did a series of videos with all of his close friends, with the same exact concept. Someone illegally ripped the video from his page and made it into a "commercial" for Silk. We are currently looking into legal action for copyright infringement. Neither of us gave our consent to use this video by any means, and the original piece has nothing to do with Silk or soymilk or any of that crap, it was just a slow motion test piece for kenny's camera.

Kenny paid for the rights to use Etta James' "At Last", right? Because if he didn't shouting about copyright infringement seems like calling a kettle black.

Either way, this opens up a whole new can of worms, if people submitting ideas to competitions, like Zooppa's are using, remixing and dabbling with "found" clips, brands using these ads could be the ones finding themselves in legal trouble when no right have been secured to any audio or visual.

After talking it out with @adland and @lesliebap (which is hard to do over Twitter, so good on them for explaining stuff so succinctly), I'll gladly concede the point that using the music can be (and most likely is) a copyright violation. In the end, everything from a dude posting a video of his baby dancing to All the Single Ladies to a guy showing that he's really good at using a wide range of (licensed) music in an effective manner to a guy playing with his video gear and then setting music to it as a personal project are all susceptible to being violations of copyright. It is, admittedly, just not something I probably just don't _personally_ see as a kind of copyright violation/threat/etc, because I can't imagine that kind of stuff causing any kind of financial damaging an artist/creator, but at the same time I'm pretty sure the law isn't based on my feelings.

That said, I still think that it's a bit unfair to label any of those examples as a pot/kettle situation, when comparing it to either the person who I believe literally lifted the video and slapped a Silk tag on the end, or Silk itself for hosting it with what appears to be the hope for it to go viral for the sake of free marketing (which seems to have been Silk's goal, based on the Zooppa project description).

To me, it's like saying someone personally giving a friend a mixtape without licensing approval (thus turning everyone in the 80s into copyright violators) and someone else using that music to soundtrack a major motion picture are doing the same exact thing. I think it's important to consider the scope/intent/damage that is done. Yes, they might have both been doing something that makes copyright protections frown, but there's notably more damage done when someone uses the music for commercial purposes than trying to flirt with the girl in the apartment down the hall.

It is also possible that Silk isn't responsible for someone else ripping the material, but that's more me just not knowing where someone's responsibility begins and ends when it comes to using work that was commissioned/submitted/etc.

My point is that Wu's showing off his camera/skills on Vimeo, and whomever that participated in an unpaid pitch/competition that was never ever aired only hosted on a similar video site - both video sites have TOS-notices that everyone should read by the way - are being equally infringing. I don't think the competition being for a US national brand or being for a local non-profit rescue puppy center makes on iota of legal difference.

If you notice, too, the Vimeo video Dabitch posted is now marked "Private." Thats how to put something online legally.
That's the difference. The "making a mix tape," argument doesn't work because you weren't posting the mix tape online for millions to potentially copy.
As to whether Silk knowingly knew it or otherwise...well clients have teams of lawyers whose sole job is to check this stuff out. case in point, I shot a TV spot earlier this year in which there were fake brands in it, in the background. We're talking cutaway shots. Still the legal team of both agency and client had to go through the process of making sure the made up brand I named didn't exist or didn't infringe on copyright in some way shape or form. Now you can blame an overly litigious society but I would be quicker to blame a society that doesn't value the law anymore. At least not this particular law.
And the thing about the law is, theft is theft. they don't gauge intent. I may have stolen a car "Just for me," but I still stole a car.
I know it's hard to wrap your head around it. But that's the problem with the Freehadists. They have made this argument so. And it's stupid. No matter which way you cut it, your online life is no longer private. our lives have changed. Whether you want them to or not, the laws have not.

Legally, I totally agree, both in terms of the TOS and the law itself. That said, I have my doubts that someone posting a video of their kid dancing to All the Single Ladies without licensing would have the same kind of penalties/punishments as a prime time super bowl commercial featuring the song without licensing. I'm sure it's totally within the original work owner's right to have both pulled. I just question how much damage could take place to the work by the former in comparison to the latter.

That's mainly why I didn't think it was a pot/kettle situation. Some dude adding music to a video he shot when testing out his camera is probably not the same scale/scope of licensing damage/risk/infringement (as far as I know). I just question if Wu's video had the same capability of causing licensing damage that would take place if it was promoted by a company as a viral commercial.

To me, it's like seeing being slightly shoved and being kicked in the head as the same exact thing. That's not me being pro-slightly-shoving, but just saying that I see a scope of harm between the two. It's absolutely possible that the law itself might not care, but I personally do.

@kidsleepy

Who said it wasn't? My original point was that I don't believe the scope/scale/damage of both are the same. That's why I didn't feel it was a pot/kettle comparison.

"I know it's hard to wrap your head around it. But that's the problem with the Freehadists." Were you picturing yourself patting my head when you said that? I get copyright law just fine. That doesn't mean I can't personally recognize a difference between a dude testing out his camera and a video that a corporation wants to go viral, even if the law might not care all that much.

I really don't understand why you're using the superbowl argument here. In the bowl, when a brand pays three million dollars for the thirty second of media time alone you better believe that ad has seen fiftybillion lawyers along the way. All the rights have been secured, i's dotted, and t's crossed. (unless it's Doritos har har, injoke, sorry. :P)

And Wu making his little home movie sorta thing that he puts online for everyone to see (breaking both Vimeos terms of service if he did not pay for the rights to use that song, but also not using one of Vimeos best features/services that matches your video to a good song you can licence but I digress...) in comparison to JoeSchmoe creative dude out-of-a-job-but-would-really like one who takes his footage and uses it to pitch an idea in a creative compettion... **

Yeah, they differ how exactly? They both infringe. Period. If The Zooppa competition wasn't online, we'd be watching the idea in some meeting room, and saying yay or nay to the idea for the brand. If the Vimeo camera-test wasn't online, we'd be watching it on someones reel, saying yay-or-nay to potentially working with them.

So, yeah, they're both "causing licensing damage", because according to Silk, that stuff wasn'tpromoted by a company as a viral commercial. It was an entry in a competition where it might te winner, and tus on the runner up list.... I know, right? This is where it gets tricky because the brand can potentially wash their hands from all the infringing they actually encouraged in a way. Right? And that's where I find the most ethically dubious people hanging out, big fucking brand not willing to pay anybody for anything be it music, camera-work or ideas. So instead of giving creative people what they are potentially due for their creative skills, they're just gonna have us fight it out in random comments about who owes whom what according to IP law. It's like they just tossed coins at us from a passing rickshaw. And you would rather argue with me, than them.

"Self publishing" which is what everyone here is doing, doesn't mean "you have diplomatic immunity from copyrights and trademarks". The moment you published it, you did. The damage was done there. It's like being almost pregnant. Doesn't happen. Either you published it for the world to see, or you did not. If Wu's video went totally unreally viral and is seen by millions upon gazillions of people, did he not owe the late Etta James a chunk of that fame? It's the thing that makes his slow-mo shot an idea. (Or as Paul Arden used to say, music is at least 70% of a commercial, sometimes 90%)

** Full disclosure, I do not know if the creative who entered the zooppa competition is out of work 'm just assuming that because, whoah, entering gigs like that? Nothanks, amirite?

It was just a random comparison. Like you, I'd definitely hope lawyers/companies know not to use unlicensed materials in that kind of ad (or any kind, really, honest).

That said, I'm sure the damages made for not having licensed material used in a superbowl commercial would be notably larger in comparison to whatever damages would be made by a guy adding the same music to a vimeo upload (if they could even prove it caused any kind of brand damage, which to me might be an uphill battle — if anything I'd expect the video being pulled and nothing more).

That's not me denying it's against Vimeo TOS, or copyright laws as a whole, just because it's some dude adding music to his video. I just view unlicensed material being used in a commercial that is meant to be distributed (virally or otherwise) for deliberate/intentional commercial purposes having more damage to that material than if it was just some random internet person uploading a video that had the music added without the intent or plan to profit from it. I just don't think someone singing/dancing/using a song in a personal/creative/non-commercial video (or a video that has no intent to be monetized) is on the same scope/scale of a violation as someone who then takes that person singing/dancing/etc and monetizes it without the creator's permission, even though they are both violations under US law.

I can't stress enough that I'm not defending Wu.

"So, yeah, they're both "causing licensing damage", because according to Silk, that stuff wasn't promoted by a company as a viral commercial."

My understanding was that it was on Silk's youtube channel. If Silk never even added it to their channel as one of the videos they were featuring, then I don't think Silk itself did anything wrong.

""Self publishing" which is what everyone here is doing, doesn't mean "you have diplomatic immunity from copyrights and trademarks". The moment you published it, you did."

I'm not saying anyone has any kind of immunity. Really. I swear.

"If Wu's video went totally unreally viral and is seen by millions upon gazillions of people, did he not owe the late Etta James a chunk of that fame?"

I do think about that stuff, honest! I'm not sure what the best recourse would be if someone sings a song they like, puts it on vimeo/youtube/facebook/etc (I know I'm jumping around here with examples, but what I'm trying to do is show I'm not just thinking about this one specific context but an overarching thing), having some people end up going "wow, that's a great cover!" and the video going viral. I do think the person who wrote the song deserves something if the person who covers it then profits, but at the same time I don't know how much I like the idea of someone not being allowed to upload a video of them dancing/singing/using etc a song for non-commercial purposes.

I'm not saying people have a "right" to upload a video of them singing, nor am I denying that copyright laws exist, nor am I saying the original artist shouldn't have a say in the matter, nor am I embracing that "Freehadists" stuff that was brought up before. I just think there needs to be a better kind of middle ground.

But really, that's all a much deeper tangent about copyright laws and how I view them.

Pulling back from all that, I do agree that, as it stands right now, Wu also violated copyright, like either Silk and/or the commercial creator did. I just don't see it as a violation of the same potential scale/scope which to me is closely linked to the kind of damage the work being copied faces as a result. That's why I disagreed with the whole pot calling the kettle black line.

"Full disclosure, I do not know if the creative who entered the zooppa cometition is out of work 'm just assuming that because, whoah, entering gigs like that? Nothanks, amirite?"

Seriously. The important thing is that the end of the day we can all agree that kind of spec work is absolutely baffling (well, that and it's always better/safer/smarter/healthier to just never attempt to use licensed material just for the fun of it ever ever ever if the work becomes available to the public).

I think in the end it'll be the same way we target a lot of other crimes-you go after the big guns so to speak. So the guy who posted his kid's party put to Beyonce is less an issue than the Kim Dot Com's of the world. That or perhaps by hit count. Someone, I think will end up finding the balance between sensible legislation and overkill. I just think to throw out the law because "it's too hard," isn't going to work either, because then you're throwing out the rights of people who worked hard to create stuff.

True. There are bigger (heh) fish to fry. The theiving starts somewhere tho. It ain't easy in a world where copying and remixing is easier than finding out who owns the rights to something so that one *can* ask permission. Gosh I wish we had a digital watermark of some sort that stored contact information of the creators, that would be kinda awesome.

I'll also point out, it's the actress/model/friend of Kenny Wu who is the one getting all worked up about his work ending up in the Zooppa competition, and giving a statement about 'looking into legal action for copyright infringement', making it clear she never wanted her likeness used in a 'Silk or soymilk or any of that crap' ad. I have no idea if she signed a model release when she agreed to let Kenny film her having milk splashed in her face. She's the lady upset with Kenny's work being "stolen", but not upset about Etta's work being "stolen".

(and what Zooppas competition TOS says? No idea, but that's another layer to this legal onion).

The Vimeo ad is still available by the way, over here. Seems that Kenny Wu only made it non-embeddable. Found it when I went hunting to see if Cassandra Coutard / Kenny Wu had done anything legally against SILK or settled or whatever came of that.